Kenya Plantation And Agricultural Workers’ Union v Carzan Flowers [2013] KEELRC 690 (KLR)
The bottom line
#Kenya's Industrial Court ruled employers cannot mass-dismiss striking workers without individual notice and hearing; Carzan Flowers' collective dismissal of 400 workers was unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether section 80 of the Labour Relations Act, 2007 is the exclusive path for dealing with unprotected strikes
Yes; the employer must apply due process of notice and hearing before imposing any punishment
Relying on its earlier decision in KPAWU v Roseto Flowers, the court held that the ultimatum principle does not apply to unprotected strikes. Section 80 does not prescribe a disciplinary procedure; such procedure is drawn from the Constitution (Articles 47 and 50(1)), the Employment Act, 2007 (including section 41 on notice and hearing) and lawful agreements between the parties. The primary punishment is denial of payment for the strike period, imposed only after due process establishing individual involvement.
Whether termination is available in an unprotected strike absent due process under the Employment Act, 2007
No; the employer must comply with due process under the Act
The court held that dismissal by way of three notices and ultimatums, without individual notice and hearing, contravened the Constitution, the Labour Relations Act, 2007 and the Employment Act, 2007. Every employee's case must be considered on its unique merits; collective disciplinary process and collective punishment are impermissible.
Whether the grievants' dismissal on 15.04.2011 was unfair and illegal
Yes; the termination was unfair and illegal and the claimant is entitled to the declaration sought
The respondent unilaterally changed payment of mid-month advance salaries from cash to bank transfer, exposing indebted grievants to loan recovery and leaving them without subsistence. The ensuing stoppage was treated through collective notices and a collective summary dismissal letter applying the ultimatum principle, contrary to the due process requirements the court identified.
Whether reinstatement or an anti-victimization order should issue
Both declined
The court considered the considerable time elapsed since the 15.04.2011 dismissal and the many grievants involved, concluding that an order of reinstatement or re-engagement would occasion considerable and unreasonable difficulties; the offensive actions were stale. The anti-victimization prayer was moot as the grievants were outside the respondent's jurisdiction. The court should not act in vanity.
Legal principles established
#- Section 80 of the Labour Relations Act, 2007 is the exclusive path to be invoked by employers in dealing with employees involved in unprotected strikes, and due process of notice and hearing must precede any punishment
- The ultimatum principle is unavailable in Kenya's strike legislative framework; collective imposition of punishment is not permitted as each employee's case must be considered on its unique merits
- Under section 80 the primary punishment for participation in an unprotected strike is denial of payment for the strike period, imposed only after due process
- Dismissal or termination on account of a strike should be invoked in extremely rare and obviously justified cases
Court orders
#- 1.A declaration that the termination of the grievants' employment was unfair and illegal
- 2.The respondent to issue the grievants' respective certificates of service by 1.10.2011
- 3.The respondent to pay grievants days worked and not paid
- 4.The respondent to pay grievants pay in lieu of the termination notice as per the CBA
- 5.The respondent to pay grievants 2010 annual leave due and not taken
- 6.The respondent to pay grievants appropriate leave travelling allowance as per the CBA
- 7.The respondent to pay grievants gratuity for each completed year of service and payment prorated for those who have not completed a year of service and as per the CBA
- 8.The respondent to pay grievants 4 months salaries at rate of monthly gross pay as at termination for unfair termination, taking into account mitigating and aggravating factors
- 9.The claimant to compute the dues and serve upon the respondent by 15.08.2013; the respondent to file and serve any objections by 30.08.2013 for confirmation
- 10.The respondent to pay the dues as confirmed by 1.10.2013 failing which interest payable at court rates from the date of judgment till full payment
- 11.The respondent to pay costs of the case
- Jurisdiction invoked
- Jurisdiction of the Industrial Court under the Labour Relations Act, 2007 (section 80(3) vests jurisdiction to determine the legality of a strike in the Industrial Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation And Agricultural Workers’ Union v Carzan Flowers [2013] KEELRC 690 (KLR)", Case Analysis (2013). Cause No 36 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/690/eng@2013-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.